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19 March 2019
The Ontario Superior Court of Justice recently released a significant decision that expands occupiers' liability for violence on their premises and affirms a new privacy tort that censures the publication of aspects of an individual's private life without their consent. In Jane Doe 72511 v Morgan,(1) Jane Doe successfully brought claims against:
This decision establishes a novel cause of action for claims arising from the distribution of an individual's private information – in this case, a sexually explicit video of the plaintiff without her knowledge or consent.
Following Jones v Tsige(2) (the seminal Ontario Court of Appeal decision that established the tort for breach of privacy in Ontario), the court in Morgan continues to expand the protection of privacy rights in Canada by recognising a new common law cause of action for invasion of privacy.
Doe met Nicholas Morgan while they were both in high school. Soon after they started dating, Doe learned that she was pregnant and their relationship became volatile and abusive. Doe stayed with Nicholas Morgan and his parents, Alan and Florence Morgan, and in her seventh month of pregnancy she experienced her first serious incident of violence by Nicholas Morgan. The couple reconciled but the abuse and threats continued after the birth of their son. Alan and Florence Morgan frequently witnessed their son's violent and degrading conduct against Doe but took no steps to intervene, except for occasionally warning Nicholas Morgan to "get off that girl".
In March 2014, after another violent attack, Doe called the police and Nicholas Morgan was charged and convicted of assault. In June 2016 a friend informed Doe that a sexually explicit video of her had been posted on an internet pornography website. When Doe confronted Nicholas Morgan, he admitted that he had uploaded the video as revenge for her having him arrested. Doe eventually persuaded the website's administrators to remove the video, but not before it had been viewed more than 60,000 times and shared on 10 different websites.
Occupier's duty to mitigate risk of violence
Duty of care
Doe claimed that Alan and Florence Morgan owed her a duty of care under the Occupiers' Liability Act(3) because the assault took place in their home and with their full knowledge. An 'occupier' is defined under Section 1 of the act as "a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises". Section 3 of the act states that an occupier:
owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
However, Section 4(1) of the act establishes an exception to an occupier's duty where an individual willingly assumes the risks associated with entering on the premises.
Justice Gomery held that Alan and Florence Morgan's duty as occupiers was not vitiated under Section 4(1) of the act on the basis that a person cannot consent to the intentional application of force causing serious or non-trivial bodily harm, as established in R v Jobidon.(4) The court found that, as a matter of public policy, if a person cannot consent to battery or threats of bodily harm in the course of an activity that could give rise to a criminal charge, the same should apply where the activity may attract civil liability.
Standard of care
On finding that Alan and Florence Morgan owed Doe a duty of care as occupiers of the home, the court set out to determine the applicable standard of care and whether that standard had been met.
Under the Occupiers' Liability Act, an occupier is liable for failing to prevent foreseeable harm by someone on the premises. Gomery held that Alan and Florence Morgan should have foreseen the continuation of physical violence by Nicholas Morgan against Doe, as they had regularly witnessed his abuse and saw her injuries. The court found that Alan and Florence Morgan had been negligent and had breached their duties as occupiers under the act by failing to take reasonable steps to intervene; therefore, they were jointly liable alongside Nicholas Morgan for Doe's damages.
Despite Nicholas Morgan using his mother's computer to post the explicit video of Doe, Gomery did not find Alan and Florence Morgan liable for their son posting it, as there was no evidence indicating that they had known about the video or could have reasonably foreseen he would have published it on a pornographic website.
Notably, the court established the novel tort of public disclosure of private fact, which had been previously considered only by an Ontario court in Jane Doe 464533 v D (N).(5) In that case, Justice Stinson issued a default judgment against the defendant after finding him liable for this new cause of action for posting intimate images of the plaintiff without her consent. However, the defendant successfully moved to have the decision set aside on the grounds that it was in the interests of justice for him to present a full defence.
As part of Gomery's analysis, she considered Jones, which recognised a new tort for breach of privacy based on the defendant's unauthorised monitoring of the plaintiff's banking records. In the absence of any common law or statutory cause of action for invasion of privacy, the Ontario Court of Appeal recognised a new tort referred to as 'intrusion upon seclusion'. This tort was one of four breach of privacy torts identified by William Prosser, a leading US academic in the area of tort law, in his seminal 1960 article on privacy law:
In Jones, Justice of Appeal Sharpe considered no other breach of privacy torts identified by Prosser, but left the door open to new causes of action for invasions of privacy.
In this case, the court effectively adopted Prosser's second breach of privacy torts, setting out the elements of the tort of public disclosure of a private fact as follows:
[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other's privacy, if the matter publicized or the act of publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.
Gomery applied the requisite elements of the tort and found that Doe had successfully proved each of the following elements for the court to find Nicholas Morgan liable for public disclosure of the explicit video:
Finding that the breach of a plaintiff's privacy rights in a case of 'revenge porn' are more serious than in an action of intrusion on seclusion, Gomery awarded general damages in the amount of C$50,000, far exceeding the C$20,000 limit set in Jones. The court considered the following factors to justify the higher damages award:
The court awarded an additional amount of C$25,000 for aggravated damages based on Nicholas Morgan's malicious intent to humiliate and threaten Doe. Finally, finding that the compensatory damages had been insufficient to address Nicholas Morgan's actions, and recognising that "revenge porn is an assault to the victim's personal agency and sense of self-worth", the court awarded C$25,000 in punitive damages to emphasise the seriousness of Nicholas Morgan's conduct and to deter others from engaging in such behaviour.
At a time of exponentially accelerated technological advancement, this decision confirms that Ontario courts are willing to adapt common law principles to reflect the modern reality in which privacy interests operate.
Individuals and organisations should be cognizant of the potential implications of Morgan with regard to their use and publication of others' personal information. Although the Personal Information Protection and Electronic Documents Act(6) applies only to certain organisations in the course of commercial activities, this novel tort has broader implications, which may directly affect individuals and organisations that are not governed by legislation.
While this decision may not be the final word on this new tort, especially given that it arose in the context of default judgment, it demonstrates a strong willingness by the courts to recognise new torts that address the injury or harm arising from an invasion of privacy.
Additionally, Morgan serves as a warning to occupiers who turn a blind eye to violence on their premises. This decision establishes a real risk that occupiers can expect to be found liable for the actions of violent individuals in their homes or businesses where the occupier had some knowledge of the violence and took no reasonable steps to prevent it.
For further information on this topic please contact Amer Pasalic at Dentons Canada LLP by telephone (+1 416 863 4511) or email (firstname.lastname@example.org). The Dentons website can be accessed at www.dentons.com.
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